Lawyers Qld wins landmark case against the Queensland Building Services Authority. BSA Review Decision

The Queensland Commercial and Consumer Tribunal found that standard QBSA procedures for service of BSA notices by post did not comply with section 39A (1) (a) of the Acts Interpretation Act.

The member found that "Indeed, for a document as important as this document is, affecting, as it does, a person's rights in a significant respect, the requirements of section 39A must, in my view, be strictly complied with, if the Authority is to expect the benefit of the postal method of service."

The BSA review decision resulted from Lawyers Qld Principal Karen Schwede successfully defending a builder in a case where the BSA purported to serve a notice by mail on 19 March 2008 which the builder claimed that it did not receive.

The consequence of the builder not receiving the BSA notice was that with no further correspondence in relation to that matter the BSA approved an owner's BSA insurance claim in the amount of $200,000.00. The $200,000.00 would ultimately become a statutory debt that the builder would become legally liable to repay the BSA and the builder could not lodge an application for a review od the BSA decision.  

The builder became aware of the $200,000.00 decision made March 2008 in September 2008 when the issue was raised by the BSA in relation to a separate matter. The BSA later admitted that there had been no other correspondence sent to the builder about the $200,000 claim other than the notice they purported to serve on 19 March 2008.

On its face this meant that the builder had to reimburse the BSA $200,000.00 and had no right to appeal the BSA insurance claim decision in the Commercial and Consumer Tribunal.  The BSA's position was that the builder had forfeited the right of appeal because it had not lodged an application for review within 28 days of the decision.  This is despite the fact that the review period had apparently come and gone without the builder's knowledge because he did not receive the notice of the decision. 

Clearly this was a situation that the builder found unfair, and because of the BSA's administration systems this was a problem that could arise for any Queensland Builder or Contractor.  

Lawyers Qld reviewed the case for the builder and sought an urgent BSA review hearing in the Commercial and Consumer Tribunal to have the matter of the builder's non receipt of the notice addressed.

 Essentially the position of the BSA was: 

i)                 That a letter dated 19 March 2008 had been posted in the normal mail and service was effected.  

ii)               The builder did not lodge an application for review of the BSA decision within 28 days and had no right to have the matter reviewed in the Queensland Commercial and Consumer Tribunal.

iii)              The BSA intended to proceed with the payment of the $200,000.00 bsa insurance claim and had in fact approved the claim.

Lawyers Qld through its principal Karen Schwede and Barrister Tim Matthews argued at the BSA that it was manifestly unfair that the Builder should be effectively bound to reimburse the BSA $200,000.00 with no opportunity to lodge an application for review of the bsa insurance claim.

The matters were heard over three days in the Commercial and Consumer Tribunal.  Essentially there was a very technical legal debate as to whether the BSA had properly served the first (and only) notice on the builder in relation to the $200,000.00 claim.

Witnesses were examined and the evidence of the BSA was that the notice was "generated" from a computer template and placed in "a mail out box beside the printer".  The person that generated the letter gave evidence that sometime later that day she saw that the "mail out box" had been emptied. 

Evidence was adduced that the BSA had no register of outgoing mail and that in this instance the notice was placed in the "mail out box beside the printer", allegedly collected by staff from the mail room, and later collected by Australia Post.  It was also established that it is not the policy of the QBSA to send notices by certified mail regardless of the importance of the notice.

The outcome of the case was that it was determined that in the circumstances of the matter before the Tribunal the standard procedures of the Building Services Authority relating to service of notices did not comply with section 39 of the Acts Interpretation Act and therefore the notice had not been properly served and was ineffective.

Lawyers Qld had won the right for its client to be granted an application for review of the BSA decision in the Commercial and Consumer Tribunal. This is an important precedent for all Queensland Builders and Contractors governed by the QBSA.

Lawyers Qld specialise in Building and Construction Law in Queensland and New South Wales for legal assistance please email enquiries@lawyersqld.com.au .

Below is are extracts from the decision of the Commercial and Consumer Tribunal

Review application - service by post - section 109A of Queensland Building Services Authority Act 1991 and sections 39 and 39A of the Acts Interpretation Act 1954 - application for stay of Authority's decision.

It is the Authority's position that the above mentioned letter dated March 2008 was posted to the applicant on the date that it bore, and that that constituted service upon the applicant for the purposes of the Queensland Building Services Authority Act 1991 ("the QBSA Act") and the Commercial and Consumer Tribunal Act 2003 ("the CCT Act"), receipt being deemed in the ordinary course of the post pursuant to section 39A of the Acts Interpretation Act 1954 ("the Acts Interpretation Act").

It is the applicant's position that the letter was never received by the applicant through the post, but only came to the notice of the applicant when reading an affidavit by the Authority's Resolution Dispute Manager sworn 15 September 2008 which annexed the subject letter.

When notice of the Authority's decisions, as contained in the 19 March 2008 letter, was actually received (or deemed received, as the case may be) by the applicant is determinative as to whether the applicant's review application was brought within the required 28 days. If it was not, then -

i) there would be a need for the Tribunal to extend the time for the applicant to bring a review application; and/or

ii) as to the decision about a scope of works, as contained in the 19 March 2008 letter, section 86(2)(c) of the QBSA Act would apply to deny the Tribunal jurisdiction to review that decision.

Section 39A(1) of the Acts Interpretation Act then provides -

"39A Meaning of service by post etc."

(1) If an Act requires or permits a document to be served by post, service-

(a) may be effected by properly addressing, prepaying and posting the document as a letter; and

(b) is taken to have been effected at the time at which the letter would be delivered in the ordinary course of the post unless the contrary is proved.�

She (BSA employee) said that, several times during the relevant day in March 2008, she visited the printer, noticing that the mail out box was cleared and that the letter was no longer there. She said that the letter has never been returned to the Authority, as far as she is aware. She further noted that the procedures outlined above are those applied by the Authority in relation to the outgoing mail, and that, in her experience, letters sent were received by the recipients in ordinary course of the mail.

Under cross-examination the BSA employee confirmed that, whilst there was a system for recording incoming mail, there was no system for recording outgoing mail.

I turn now to the Authority's evidence of posting, namely that of the BSA employees. I must observe at the outset that the fact that processes in place at the Authority for the posting of mail were utilised does not ipso facto mean that each of the requirements of section 39A(1)(a) of the Acts Interpretation Act have been met for there to have been valid service by post.

Indeed, for a document as important as this document is, affecting, as it does, a person's rights in a significant respect, the requirements of section 39A must, in my view, be strictly complied with, if the Authority is to expect the benefit of the postal method of service.

30 Examining then each of these requirements in section 39A(1)(a) -

i) "properly addressing" - I consider that, consistent with the posting of a document being only by enclosing it in an envelope, this terminology can only be a reference to the addressing of the envelope, and not the addressing of the letter itself. The BSA evidence refers only to addressing the letter which was then placed in an envelope. There is no reference in evidence to addressing that envelope.

Whether it was (First BSA Employee) or another (perhaps Second BSA employee) who had that task is not clear. Certainly, (Mail room BSA employee's) affidavit makes no reference to such activity.

ii) "pre-paying" - There is no evidence as to pre-paying by means of affixing a stamp or some other mechanism arranged with Australia Post.

iii) "posting" - The only evidence as to this is the evidence of the BSA mail room employees to the effect that Australia post picked up certain mail.

In the above circumstances, I cannot be satisfied that the Authority has posted the subject letter in accordance with the requirements of section 39A(1)(a), and, for that reason; that the applicant is deemed to have received such a letter, in terms of section 102 of the CCT Act, in the ordinary course of the post. It follows then that the only evidence of actual receipt is that of (The Builder) and that the applicant's review application has been brought within time.

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